Friedrich v. Donahue

• Decision Date: 24 June 1911
• Citation: 116 P. 1029,20 Idaho 92
• Parties: PAUL FRIEDRICH et al., Appellants, v. PATRICK DONAHUE, Respondent
• Court: Idaho Supreme Court

116 P. 1029

20 Idaho 92

PAUL FRIEDRICH et al., Appellants, v. PATRICK DONAHUE, Respondent

Supreme Court of Idaho

June 24, 1911

APPEAL-DETERMINATION OF FACTS-CONCLUSIVENESS OF VERDICT.

(Syllabus by the court.)

1. A verdict based upon conflicting evidence will not be disturbed on appeal if there is any substantial evidence upon which the same may rest.

2. In an action of claim and delivery to recover possession of a steer, evidence examined, and held sufficient to support a verdict for defendant.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Edward A. Walters, Judge.

Action of claim and delivery to recover possession of a steer. Judgment for defendant, from which and from an order denying a new trial plaintiffs appeal. Affirmed.

Judgment and order affirmed. Costs awarded respondent.

Sullivan & Sullivan, for Appellants.

McFadden & Brodhead, for Respondent.

Counsel cite no authorities.

MACLANE District J. Ailshie, Presiding J., concurs. Sullivan, J., sat at the hearing but took no part in the decision.

OPINION

MACLANE, District J.

This action was one of claim and delivery to recover possession of a roan steer. It was tried in the district court for Blaine county, and resulted in verdict and judgment for the defendant, from which and from an order denying a new trial plaintiffs appeal.

The sole assignment of error made in this court is that the evidence is insufficient to justify the verdict. Under this assignment we do not review the weight of the testimony, nor consider how we, as trial judges, would have decided the case as original triers of fact, nor how, as such judges, we would have disposed of a motion for a new trial upon the same assignment; but the only question before us on appeal is whether there is any evidence in the record upon which the jury could base their verdict. For it is a rule too well established to require citation of authority, and, indeed, explicitly admitted by appellants' counsel, that a verdict based on conflicting testimony will not be disturbed on appeal if there is any evidence upon which the same may rest.

The admitted facts of the case are that on April 29th, 1907. the defendant sold to plaintiffs, by bill of sale, all his cattle except five milk cows for the sum of $ 22 per head, described as follows: "Five three year old steers, six two year old steers, three bulls; balance about fifty-four head of stock cattle, cows, heifers and steers mixed. All young calves not branded thrown in, and twelve head of the smallest branded calves thrown in with said amount of cattle." Pursuant to this contract the cattle were delivered to the plaintiffs about June 1st, 1907, and at the time of delivery they were run through a chute and vented, that is, branded a second time with the defendants' brand, which is the customary way of indicating a sale of branded stock when sold to be shipped or butchered as these were. It is admitted that the roan steer in question in this action was included in the sale and was intended to be delivered to the plaintiffs, but the points in dispute are: First, whether it was actually delivered and paid for at the time of the delivered of the other cattle, and, second, if not so delivered and paid for, whether it was within the description of "twelve head of the smallest branded calves" which were to be thrown in without specific compensation.

On the first of these questions the plaintiffs, to make out their case in chief, rested upon the testimony of the plaintiff Henry Mehl alone, who, after testifying to the execution of the contract and the delivery of the cattle, said that this steer was delivered with the rest of the cattle on June 1st 1907, but was missing on the final round-up, was afterward picked up and again lost, and was next seen in the defendant's field. On cross-examination he said that he received all the cattle stated in the contract at the time of delivery; that this roan steer was in the bunch of two-year-olds, that he could only identify it by the brand, that it was vented as the other cattle were, and that he had not seen it for a period of some two years prior to the commencement of this action. It thus appears that the plaintiffs' theory of the case was that this steer was one of the two-year-olds described in the contract, that it was delivered and paid for as such, and afterward came into the possession of the defendant in some manner which the evidence does not disclose. To meet this case the defendant testified, though after considerable vacillation and...